Motion to compel discovery was denied. Motion to vacate 90-day demand was granted as claimant was returned to State custody.
|Claimant short name:||BUTLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78466, M-78653|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Ricky Butler, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 25, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for an Order compelling disclosure, restoring this case to the calendar and vacating the 90-day demand to file a note of issue served by the Court (Motion No. M-78466). In a separate motion, claimant moves for an Order scheduling a trial date and compelling disclosure or sanctioning the defendant for its failure to comply (Motion No. M-78653).
Addressing first those branches of the claimant's motions seeking an order compelling disclosure, claimant failed to support the motions with copies of any demand for discovery. In this regard CPLR 3124 states: "If a person fails to respond to or comply with any request, notice, interrogatory, demand . . . the party seeking disclosure may move to compel compliance or a response." Claimant has failed to establish that any such demand has been served on the defendant. Claimant should first serve a demand for discovery of those items which are "material and necessary in the prosecution or defense of an action" (CPLR 3101[a]; 3120). In the event the defendant fails to timely or adequately respond, a motion to compel discovery pursuant to CPLR 3124 would then be the appropriate remedy.
This claim was dismissed for claimant's failure to appear at a calendar call and reinstated by Decision and Order dated March 10, 2010. Thereafter, the Court served upon claimant a demand that he resume prosecution of the action and serve and file a note of issue placing the action on the trial calendar as claimant had been released from State custody. Inasmuch as the claimant has now been returned to the custody of the Department of Correctional Services, the Court will grant claimant's request to vacate the demand that he file a note of issue and the case will be returned to the prisoner pro se calendar to be reached for trial in due course.
Based on the foregoing, claimant's motions (Motion Numbers M-78466 and M-78653) are denied except to the limited extent of vacating the demand that claimant serve and file a note of issue dated May 21, 2010. The Office of the Clerk is directed to place this claim on the prisoner pro se calendar.
October 25, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-78466:
Motion No. M-78653: